Financial Order

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Financial remedies until relatively recently came under the term ancillary relief. A financial remedy is a financial order which can come under the following; the Matrimonial Causes Act 1973, Civil Partnership Act 2004, Domestic Proceedings and Magistrates Courts Act 1978 and Schedule 1 to the Children Act 1989.

A financial order within financial remedies can deal with; an avoidance of disposition order, an order for maintenance pending suit, an order for maintenance pending the outcome of proceedings, an order for periodical payments or lump sum provision, a property adjustment order, a variation order, a pension sharing order or a pension compensation sharing order.

When parties separate the financial matters will generally need to be looked at to consider matters such as the family home, if maintenance is to be paid by one party to another and what should happen to the assets of the family plus whether child maintenance is required.

A full and frank disclosure is expected by the courts between the parties regarding their financial circumstances. A negotiated settlement is usually preferable but at times that is not possible and the court will have to be involved if final decisions are to be reached on the finances.

The court will expect each party to seek and provide information from and to each other prior to any commencement of court proceedings, this is called the pre-application protocol.

Estimates of costs incurred by each party are required at every hearing or appointment. The general rule in financial remedy proceedings is that the court will not make an order requiring one party to pay the costs of another party. However the court may make an order for costs at any stage of proceedings where the conduct of a party is considered to make it appropriate to order such.

Parties are expected if possible to identify and narrow issues before the first appointment at court. They are expected to provide a summary of the case agreed between the parties, a schedule of assets agreed between the parties and details of any directions they seek. Questionnaire’s for the other party may be produced if there are queries regarding a disclosure.

The financial dispute resolution (FDR) is to be used for discussion and negotiation. Anything said or any admission made in the course of an FDR appointment is not generally admissible in evidence. Parties are expected to make offers and proposals and for these to be given proper consideration. The court will give an indication as to how matters are likely to be settled to encourage realistic negotiations.

A final hearing is generally to be avoided if possible as costs particularly if lawyers are representing parties can escalate considerably. Each party will be cross-examined under oath and a decision will be made by the court which is imposed on the parties.

Every case falls to be decided on its own individual facts and so it can be difficult to identify general guiding principles which will assist parties in accurately predicting how a court will deal with a particular case.

For those parties who were married then in many straightforward cases generally a starting point of 50:50 has evolved, there being no distinction between the roles of homemaker and breadwinner. However, there are still plenty of reasons why this may be departed from including having assets (e.g. inheritance or property) prior to the marriage and that asset not having been mingled with the family finances. As long as the needs of the parties have been met then it is probable that the division of assets would be unequally divided.

Avoidance of disposition order – An order setting aside a transaction that has already been made.

Maintenance pending suit – The court may order one spouse to pay maintenance to the other until the decree absolute, in such sum as the court thinks reasonable and it may be backdated to the date that a petition for divorce, nullity or judicial separation was presented to the court.

Periodical payments – Maintenance from one party to the other.

Lump sum provision – Payment of monies, could be in installments.

Property adjustment order – Could be a transfer of the property, a settlement of the property, a variation of any pre-nuptial or post-nuptial settlements or an order extinguishing or reducing the interest of a party under any nuptial settlement.

Variation order – To change an existing settlement/order.

Pension sharing order – Transfer of a percentage of a pension-holder’s pension fund into a pension fund of the other party.

Pension compensation sharing order – A parties pension compensation is shared by reducing compensation of one party in a pension protection fund (PPF) and entitling the other to a share of this compensation. It must be paid as PPF compensation and not transferred into another pension arrangement choice of the other former spouse/former civil partner.

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On the advice of my McKenzie (the excellent Jeff Botterill), we appealed successfully to a Circuit Judge - who also then reserved the case to her - and the whole momentum of the process shifted, ultimately to my (and my son's) great benefit...excellent level of parenting time, SRO, etc.

– Mr T. (London)

Following separation it because impossible for me to secure parenting time with my young son. His mother wouldn’t allow him to spend more than two nights away with me, which made taking holidays impossible.

I met Jeff at my local FNF meeting. I was immediately struck not only by Jeff’s technical expertise but also by the calm, measured and authoritative way in which he gave others help and support.

I didn’t even bother looking for a solicitor, I engaged Jeff as my McKenzie Friend. He helped me file an application to court and draft a position statement. He subsequently helped support me in court.

In court Jeff was a rock-steady mentor, providing pragmatic and clear advice at just the right time. He negotiated with the other side and his clear familiarity with the system filled me with confidence in the waiting before the hearing. Importantly he had the confidence of the judge, who explicitly remarked on Jeff’s CV with obvious admiration.

In the hearing, following a rocky start (the judge thought my suggested residence schedule was too much for a 2 year old...and lots of allegations in mum's position statement - all ignored by Cafcass and the judge) the judge supported an amended schedule Jeff and I proposed; Jeff was then instrumental in hammering out a brief but prescriptive Shared Residence Order by consent.

The mother had applied for sole residence and proposed one Wednesday overnight a fortnight and every other weekend Friday to Sunday 6pm for contact. No holidays, other than alternate Christmas day.

I ended up with an SRO by consent, every Wednesday overnight and every other weekend Friday nursery pick up to Monday nursery drop off. I also got half of all holidays and alternate Christmas and Easter.

I am confident that with Jeff’s help, support and guidance I got the best outcome for my son; the long weekends and holidays in particular will help immensely in his relationship with me, his grandparents and his young cousin. I am sure I wouldn’t have secured such a good outcome for my son without Jeff’s calming influence, help and guidance.

– Mr M. (London)

Jeff is an excellent MF. During the final hearing, in which I had to face my abusive ex husband, Jeff's knowledge and professionalism gave me the strength to stay calm and confident. He is very upfront and honest with the merits of your case and where there may be problems which means that you go into the session feeling like there are no surprises that can appear. Jeff was so good in preparing my closing submission as he was able to get to the main points of my complex case and put forward suggestions and justifications for my arguments. I felt safe in his capable hands and would highly recommend him to any woman going through the family court system

Thanks a million again for yesterday, the notes were great and I will be pursuing this transcription of the judgment.

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After using a solicitor and barrister for a couple of years (and getting nowhere). I have found Jeff’s knowledge of the court processes and family law invaluable in progressing my court case for contact with my two boys.

Whenever we have been in court Jeff has always been fully prepared for the appearance and the suggestions/advice he has given me has helped me set the agenda in court. Jeff is measured in his approach and calm at all times whether in or out of court.

– Mr S. (London)

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